LawFlash

The U.S. Fish and Wildlife Service (FWS) has released drafts of non-binding guidelines to assist developers of onshore wind energy to avoid, minimize, and compensate for effects to fish, wildlife, and their habitats. The Draft Land-Based Energy Guidelines (Guidelines)1 are designed to promote compliance with various environmental statutes, including the Endangered Species Act, Migratory Bird Treaty Act, and Bald and Golden Eagle Protection Act (BGEPA), through surveys, monitoring, assessment, and research designs. Concurrently, FWS has issued its Draft Eagle Conservation Plan Guidance for Wind Energy Development (Eagle Guidance), which supplements the Guidelines with specific procedures for obtaining incidental eagle take permits.2 Each guidance document sets forth a multi-stage evaluation and mitigation approach to the development of wind projects and consultation between each developer and FWS.

Although compliance with the Guidelines and Eagle Guidance is technically voluntary, conformity with their procedures is nevertheless an important practical consideration for affected parties attempting to minimize the risk of FWS enforcement actions. Therefore, wind project developers and investors should carefully consider these guidance documents. Both the Guidelines and Eagle Guidance will be open for public comment for 90 days following their publication in the Federal Register. They will take effect after this period expires and FWS publishes their final versions.

Land-Based Wind Energy Guidelines

The draft Guidelines are based on a “tiered approach” to wind energy development, described by FWS as an “iterative decision making process for collecting information in increasing detail; quantifying the possible risks of proposed wind energy projects to fish, wildlife, and habitats; and evaluating those risks to make siting, construction, and operation decisions.”3 Five procedural tiers guide developers through increasingly narrow and detailed inquiries to determine the appropriateness of a particular site for development, as well as identify any needed mitigation measures. The tiers are as follows: (1) preliminary evaluation or screening of potential sites; (2) site characterization of one or more potential project sites; (3) pre-construction monitoring and assessments at proposed project site; (4) post-construction monitoring of effects; (5) research to further evaluate effects and assess how they may be addressed.

FWS intends for each tier to build on the findings of previous tiers in order to evaluate and respond to risks to affected species. One goal of the tiered approach is to lead to an appropriate amount of evaluation in proportion to the anticipated level of risk a project entails. It is not intended to be a one-size-fits-all process. Rather, the duration and scope of each tier should be commensurate to the level of identified risk. A project with little or no risk may not need to go through each tier, although FWS recommends coordination with the agency before the process is stopped.

To guide the inquiry at each tier, FWS poses questions that developers should answer. The agency then suggests best available methods and metrics for gathering the data necessary to answer those questions. Tier 3, for example, which generally occurs after a site has been proposed but before construction has begun, sets forth the following questions:

Are individuals or local populations of affected species present or likely to be present?

Is there a potential for adverse effects to such species?

What are the details of the species’ presence (such as distribution, abundance, behavior, etc.), and to what extent do these factors expose species to risks?

What are the potential risks?

Can effects be mitigated and, if so, how?

Will permits, such as incidental take permits, be required?

Should monitoring and assessment be initiated? and,

Have relevant agencies reviewed and commented on the process?

Based on the answers to these questions, developers can determine how to develop the site and what mitigation factors may be required, or, if significant risks are identified, whether a project should be abandoned.

Eagle Conservation Plan Guidance

Concurrent with the release of its draft Guidelines, FWS also released its draft Eagle Guidance.4 The Eagle Guidance complements the Guidelines by presenting non-binding recommendations for mitigation measures specific to bald and golden eagles, which receive separate statutory protection under the BGEPA.5 FWS’s Eagle Guidance includes counsel on how wind project developers should prepare their Eagle Conservation Plans (ECPs).6 FWS intends that these plans will assist developers in their compliance with the mandatory regulations governing incidental eagle take permits.7

FWS expects each ECP to show how the developer will mitigate its wind project’s eagle takes. Because FWS wants developers to consider siting or operational alternatives that could further reduce the risks of incidental takes, the Eagle Guidance indentifies factors associated with wind turbine collision risks and sets a standard for characterizing potential project sites according to risk.8 In addition, the Guidance provides a five-stage consultation process through which each developer applying for a programmatic take permit can work with FWS to develop an ECP.9 The developer should progress through each stage in order before moving on to the next. The developer’s initial task is to identify potential project locations with manageable risks to eagles. Next, the developer should acquire site-specific information in order to forecast eagle fatality rates. For the third and fourth stages, the developer should conduct successive risk assessments, initially without considering advanced conservation practices (ACPs) and then subsequently by applying potential ACPs and compensatory mitigation measures. If FWS is satisfied with the assessments’ conclusions, a programmatic take permit can be issued for the project. For the fifth and final stage, the developer should validate its risk assessments by performing post-construction surveys and monitoring.

Import of FWS’s Land-Based Wind Guidance Documents

Although compliance with the Guidelines and Eagle Guidance is voluntary, adherence to them and cooperation with FWS presents wind project developers with significant benefits, in particular a reduced risk of enforcement in the event of a take. Developers whose projects may have resulted in unpermitted takes of protected species may be able to obtain enforcement discretion from the FWS if they can demonstrate that they have made good faith efforts to comply with the new guidelines. If protected species are harmed, FWS states that it will take “adherence and communication fully into account when exercising its discretion with respect to any potential referral for prosecution related to the death of or injury to any such species.”10 In addition, applying FWS guidance may result in greater certainty for wind project developers and investors, expedite the permitting process, and help demonstrate environmental compliance to reassure sources of funding. For these reasons, FWS recommends early adherence for new projects, and encourages existing facilities to begin the process at the appropriate later tiers.

Parties involved in wind energy development, construction, and financing should review the new guidance documents and consider submitting comments prior to the close of the 90-day Federal Register comment period.